§47.14 Duty of Hospital to Get Informed Consent

The Basic Facts: Plaintiff brought a medical malpractice action against a hospital and others after undergoing two unsuccessful surgeries to correct kyphosis of the spine. The second surgery involved an ongoing research study in which Plaintiff consented to participating in. The surgeries were performed by a doctor who was not an employee of the hospital.

The Bottom Line:

"We granted this appeal to address whether a hospital has a legal duty to obtain the informed consent of a patient undergoing a surgical procedure ordered and performed by a non-employee doctor. We hold that Tenn. Code Ann. § 29‑26‑118 does not require a hospital to obtain the informed consent of a patient. A hospital, however, may assume an independent legal duty to obtain informed consent under certain circumstances not present in this case." 15 S.W.3d at 806.

"The informed consent statute does not clearly delineate whether hospitals have a duty to procure informed consent to surgical procedures performed by non-employee doctors. The statute employs the term 'defendant' when defining the elements of an informed consent cause of action. See Tenn. Code Ann. § 29‑26‑118 ('the defendant did not supply appropriate information to the patient . . . .'). The term 'defendant' would, at first blush, seemingly include a hospital. The term 'defendant' would also seem to include: pharmacists, registered nurses, physician's assistants, nurse anesthetists, anesthetists, emergency medical technicians, or any other person or entity that may commit an act of medical negligence." Id. at 809.

"The statute requires that the 'defendant' provide 'information' in 'accordance with the . . . specialty, if any, that the defendant practices . . . .' Tenn. Code Ann. § 29‑ 26‑118. A hospital does not practice the specialties of non-employee physicians. Moreover, a hospital 'shall not restrict or interfere with medically appropriate diagnostic or treatment decisions.' Tenn. Code Ann. § 63‑6‑204(d)(1)(A). Accordingly, the language of the statute suggests that the legal duty to obtain consent is imposed only on the physician who orders or directs the surgical procedure. An interpretation requiring the hospital to provide 'information' in 'accordance with the . . . specialty, if any, that the [surgeon] practices . . . .' potentially renders absurd results. Such a broad interpretation would seemingly impose a similar duty upon registered nurses, medical technicians, or other health-care providers involved in the patient's care to procure a patient's consent prior to a surgical procedure. An overly broad interpretation, therefore, could interfere with the physician-patient relationship." Id.

"We believe that Tenn. Code Ann. § 29‑26‑118 focuses on the physician ordering the surgical procedure. Mere status as one involved in a patient's care is insufficient to trigger a statutory duty under the informed consent statute. We hold that Tenn. Code Ann. § 29‑26‑118 generally does not require a hospital to procure a patient's informed consent to surgical procedures ordered and performed by non-employee doctors." Id. at 810.

"The plaintiff argues that the defendant assumed an independent duty to procure her informed consent by participating in a monitored investigational study involving implantation of pedicle screws." Id.

"The plaintiff has not demonstrated that this off-label use was subject to the federal study or mandatory monitoring. The defendant, therefore, was not required by federal regulations to obtain Ms. Bryant's informed consent." Id. at 811.

"We hold that a hospital generally is not required to procure a patient's informed consent to surgical procedures ordered and performed by non-employee doctors. The hospital, however, may assume an independent legal duty to obtain the informed consent of a patient undergoing a procedure that is a part of an investigational study monitored by the FDA. The requisite circumstances necessary to impose this independent legal duty upon the hospital have not been met by the facts presented in this appeal." Id.

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866.812.8787.

The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff. Jamar Gibson

★★★★★

We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese

★★★★★

The Law Offices of John Day, P.C. is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire The Law Offices of John Day, P.C. again.Anthony Santiago

★★★★★

I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong

★★★★★

It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush

★★★★★

I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend!Casey Hutchinson

We serve the following localities: Davidson County including Antioch, Goodlettsville, Hermitage, Joelton, Madison, Nashville, and Old Hickory; Dickson County including Charlotte, Dickson, and White Bluff; Maury County including Columbia, Mount Pleasant, and Spring Hill; Montgomery County including Clarksville; Rutherford County including Murfreesboro; Sumner County including Gallatin, Hendersonville, and Portland; Williamson County including Franklin; and Wilson County including Lebanon.